Amendment VIII

[Volume 5, Page 387]

Document 21

William Rawle, A View of the Constitution of the United States 130--32 1829 (2d ed.)

During the arbitrary reigns of the Stuarts in Britain, particularly of the two last, one frequent mode of oppressing those who were obnoxious to the court, was to cause criminal proceedings to be instituted against them, to demand bail in extravagant sums, and on their failing to procure it, to commit them to prison.

When the revolution took place, among other provisions demanded by the people, and readily assented to by William III. was the clause which has been transcribed into this amendment. If excessive bail is demanded by one magistrate, another may moderate it on a habeas corpus, issued to the keeper of the prison in whose custody the party is. This power is not, however, to be abused, by reducing the bail below a reasonable sum. In such a case, the latter magistrate would himself be liable to a fine, if the criminal should not appear at the appointed time.

Excessive fines constitute one mode of inflicting cruel punishments.

This restriction applies equally to the legislative and to the judicial authority. In respect to the former, however, it is rather to be considered in the light of a recommendation than as a condition on which the constitutionality of the law depends. The judicial authority would not undertake to pronounce a law void, because the fine it imposed appeared to them excessive; and, therefore, if the legislature should commit, and persist in, gross errrors in this respect, the ultimate remedy must be sought among the checks on the legislative power, which will hereafter be brought into view.

The prohibition of unusual punishments applies alike, under the qualifications already noticed, to the legislative and to the judicial power.

The laws of a free country seldom leave the sort of punishment to be inflicted to the discretion of the judge, although the measure or extent of it, as for instance the quantum of a limited fine, or the duration of a term of imprisonment, which, by the law is not to be exceeded, is often submitted to him. The peculiar circumstances of each case, the contrition or general good character of the offender, may suggest and justify a moderation of the full extent of the punishment. But a law which subjects an offender to any sort of punishment, is unknown to our civil code. If the law is silent in respect to the mode of punishment, which is sometimes the case when an act is prohibited in general terms, without saying more, the court is understood to be confined to the usual moderate punishment of fine and imprisonment, or one of them. If a fine alone is imposed, imprisonment may be an adjunct, to enforce the payment of it.

The obligation on the legislature not to pass laws inflicting unusual punishments must be considered as subject to some qualification. The established forms of punishment may have proved ineffectual to prevent the commission of some kinds of offences. We may instance the practice of duelling, an offence against God and society, which no law has yet been found sufficient to prevent. It would be no violation of the Constitution if congress, within the sphere of their separate legislation, could by the invention of some new punishment, striking at the false honour which leads folly to the field, put an end to a custom so inhuman and absurd.

The Founders' Constitution
Volume 5, Amendment VIII, Document 21
The University of Chicago Press

Rawle, William. A View of the Constitution of the United States of America. 2d ed. Philadelphia, 1829. Reprint. New York: Da Capo Press, 1970.

© 1987 by The University of Chicago
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